Better in their words…

WSJ 10/14/2016
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Boise, Idaho

In the capital of the potato state, lawmakers have a power that few of their peers enjoy: They can review, and reject, new regulations coming out of executive-branch agencies. This has saved Idahoans from a slew of laughable and businessunfriendly restrictions.

At the start of each legislative session, lawmakers spend weeks examining every proposed new regulation. They have the power to unilaterally veto, without needing the governor’s signature, any rule they dislike. Last winter they nixed a proposal from the Idaho State Police requiring bars to sell at least 20 drinks a week to keep their liquor licenses. Legislative oversight last year also helped kill a rule from the Transportation Department mandating that auto dealers be open 20 hours a week. In 2013, lawmakers rejected regulations from the Department of Administration to restrict public protests and events at the capitol and surrounding grounds.

The trick is that there’s nothing in the state constitution that specifically gives the legislature this power to review new regulations. Though the process is routine by this point, it hangs by the thread of a divided 1990 ruling of the state Supreme Court, which held 3-2 that lawmakers have the authority to veto executive branch proposals. Lawmakers worry that at any time the precedent could be flipped.

Idaho voters may fix that on Nov. 8. This year’s ballot includes a constitutional amendment that would enshrine lawmakers’ right to review regulations and second guess agencies that misinterpret duly enacted statutes.

A similar proposal on the 2014 ballot was defeated by only 1% of the vote. But that year, backers of the idea took public support for granted. They didn’t mount a campaign on its behalf, and the amendment received little media attention. This time, lawmakers are actively trying to win at the ballot box.

Few states have anything close to Idaho’s regulatory-review process or legislative veto. Rarely do lawmakers have any authority to stop bad regulations without the support of the governor, whose administration is usually responsible for the rules in the first place.

The problem in Washington, D.C., is similar. Under the Congressional Review Act of 1996, Congress can pass a resolution to block the implementation of a particular set of regulations. But the resolution requires the president’s signature—which is unlikely, since his agencies came up with the rules in the first place.

Idaho’s solution is one that other states and the federal government should consider as the regulatory tangle Americans must fight through grows by the day. Last year the Federal Register, which publishes agency rules, proposals and notices, exceeded 80,260 pages—the third highest in its history, according to a report from the Competitive Enterprise Institute.

Even something as simple as a scoop of your favorite ice cream is regulated by the federal government— from the moment the milk comes out of the cow to the way it appears in your bowl. If that seems like an exaggeration, examine the rules on “physical requirements for ice cream,” which specify: “The flavor of the finished ice cream shall be pleasing and desirable, and characteristic of the fresh milk and cream and the particular flavoring used . . . The body shall be firm, have substance and readily melt to a creamy consistency when exposed to room temperatures.”

Federal regulations govern, in excruciating detail, what’s served in the cafeteria of your town’s public school. There are rules that govern caloric intake, saturated fat and sodium, as well as which individual items are permitted on each school kid’s lunch tray. Take mac and cheese, which was a regular fixture at the cafeteria in my school days. Imagine a lunch lady today trying to figure out if it’s still part of a balanced, federally approved meal: “An enriched macaroni product with fortified protein as defined in Appendix A to Part 210 may be used to meet part of the meats/meat alternates component or the grains component but may not meet both food components in the same lunch.”

In some respects the Code of Federal Regulations is a catalog of the absurd. It’s actually unlawful to sell soup and call it “chicken noodle soup” if it contains less than 2% chicken. Or to sell marbles intended for young children without an explicit written warning with the words “this toy is a marble.” As silly as this sounds, it’s also economically stifling. For small businesses, navigating the sea of regulation can mean the difference between staying in business and going under.

This is precisely the problem that Idaho is trying to solve by revising the state constitution. It’s the sort of medicine other states and Washington, D.C., could use as well. So keep an eye on Boise this Nov. 8—and if the constitutional amendment passes, maybe celebrate with a bowl of ice cream: pleasing, firm and ready to melt to a creamy consistency when exposed to room temperatures.

Mr. Hoffman is the president of the Idaho Freedom Foundation in Boise, Idaho.

If only Washington, D.C., would learn from Boise, where lawmakers can veto onerous new regulations.